Cornerstone: Support Constitutional Questions on the Ballot

November 5, 2012

Cornerstone recommends support for ballot Questions 1 & 2, which are constitutional amendment proposals that the outgoing Legislature passed on for your approval. Cornerstone is urging you to use your conscience on Question 3.

Amending the Constitution in New Hampshire is difficult, so your attention to these questions is paramount. According to Part 2, Article 100 of the N.H. Constitution, amendments can be proposed by either a constitutional convention or a three-fifths vote of each body of the State Legislature, which is called the “General Court” in New Hampshire. Now that Questions 1 & 2 are on the ballot, each must be supported by two-thirds of the qualified, participating voters from the general public to be adopted. Question 3 only requires a majority vote of the qualified, participating voters from the general public to pass. The vote for all three questions will take place on Nov. 6, 2012.

Your vote on Question 1 will determine whether the state will permanently ban an income tax as a potential method of taxation. Your vote on Question 2 will determine whether the Legislature’s oversight over the Judicial Branch should be partly restored. These two questions were proposed by the Legislature, which passed each question with a three-fifths vote in the N.H. House and the N.H. Senate. Your vote on Question 3 will determine whether the people want to organize a Constitutional Convention for a more wholesale revision of the Constitution. The Constitution requires the Secretary of State to put this question on the ballot every 10 years.

What follows is Cornerstone’s analysis to help you decide whether to support these three questions:

Question 1: Income Tax Prohibited

Cornerstone urges your support of Question 1 on the ballot, which would add a constitutional ban on a personal income tax in New Hampshire. The Legislature (known in New Hampshire as the “General Court”) passed the language of Question 1 on to the people for consideration via CACR 13, which reads as follows:

[Art.] 5-c. [Income Tax Prohibited.] Notwithstanding any general or special provision of this constitution, the general court shall not have the power or authority to impose and levy any assessment, rate, or tax upon income earned by any natural person; however, nothing in this Article shall be construed to prohibit any tax in effect on January 1, 2012, or adjustment to the rate of such a tax.

In every election cycle that passes, candidates at all levels are urged to sign the CNHT Taxpayer Pledge, among other similar pledges, which explains that the candidate will work upon their election to maintain New Hampshire’s low-tax structure by voting against, or vetoing, an income tax and other broad-based taxes. No candidate for governor has ever won without first signing this pledge, and both Ovide Lamontagneand Maggie Hassan have signed the pledge this election cycle. Even with the pledge, however, citizens in New Hampshire must be constantly vigilant to make sure candidates keep their promises once they’ve been elected. If Question 1 passes, elected officials will be forced to keep their promises by the State Constitution, and the people can turn their attention to fine tuning their government to make sure it continues to serve the people and protect their rights. In other words, Question 1 would add a section of the pledge to the N.H. Constitution.

An income tax, in particular, is a particularly damaging form of taxation because it allows the government to take a portion of the money a person earns as he or she is earning it. This type of taxation essentially punishes someone who works harder to earn more money by taking a greater proportion of that earned income as it comes in. Such punishment, in some cases, discourages people from working harder to earn more money and consequently dampens economic growth. States that don’t currently use an income tax have an economic advantage over states that use an income tax because they attract highly industrious and innovative people who want to keep the money they earn when they create new companies and new jobs through their efforts. Since New Hampshire is the only state in the Northeast without an income tax, it has developed what has been called “The New Hampshire Advantage,” which can largely be attributed to the economic advantages of not having an income tax.

As time has passed, momentum has grown among some crowds in New Hampshire to enact an income tax. Their argument centers around the idea that an income tax would supposedly generate revenue for the state that would offset revenue raised by the state’s property tax, and would consequently prevent future increases to the property tax. This argument has been proven false by other states that have used it to enact an income tax. For example, Connecticut income tax advocates used this argument to pass their state’s income tax. Following the enactment of the income tax there, Connecticut’s Legislature continued to raise both the property tax and the newly enacted income tax to pay for the government’s insatiable desire for more money and power. Now, Connecticut is ranked 40 of 50 states on the Tax Foundation’s 2013 State Business Tax Climate Index, and New Hampshire, which has so far resisted broad-based taxes, was ranked 7th of 50 states.

Small governments ensure the proper conditions for business development and job growth. To keep government small, the people of a state must keep it small by watching their representatives in the Legislature and making sure they do not agree to new spending programs that require higher taxes to pay for them. The principle behind Question 1 is that by permanently restraining the power of the Legislature to create an income tax, the Legislature will have to be more frugal with its use of money. As a result, government will remain small and responsive to the people it serves.

Question 1 requires a two-thirds vote of the people to amend the N.H. Constitution. The actual number of votes required to pass the amendment will not be known until the election concludes and the total number of voters can be tabulated. Cornerstone is advocating a “yes” vote on Question 1.

Question 2: Supreme Court, Administration

Cornerstone urges your support of Question 2, which would restore some oversight over New Hampshire’s Judicial Branch by the people through their Legislature. Due to an amendment in 1978, there is currently no oversight over New Hampshire’s court system, a very dangerous situation that this amendment would begin to address. The Legislature passed the language of Question 2 on to the people for consideration via CACR 26, which reads as follows:

[Art.] 73-a. [Supreme Court, Administration.] The chief justice of the supreme court shall be the administrative head of all the courts. [He] The chief justice shall, with the concurrence of a majority of the supreme court justices, make rules governing the administration of all courts in the state and the practice and procedure to be followed in all such courts. The rules so promulgated shall have the force and effect of law. The legislature shall have a concurrent power to regulate the same matters by statute. In the event of a conflict between a statute and a court rule, the statute, if not otherwise contrary to this constitution, shall prevail over the rule.

Specifically, Question 2 would amend Part 2, Article 73-a in the N.H. Constitution and restore some of the Legislature’s authority to direct the policies of the Judicial Branch. Originally, the N.H. Constitution gave the N.H. Legislature the power to create or disband the Judicial Branch court system with a simple majority vote. They did this several times throughout history when the court attempted to assume powers that the Constitution did not give it. This provided an important check on the court’s power and ensured the people’s ultimate power in their government through their elected representatives and senators in the Legislature, which is known in New Hampshire as the “General Court.”

Unfortunately, in 1978, the people passed Article 73-a to the State Constitution after a growing judicial influence convinced the public that the amendment was only “a housekeeping effort.” Little did the people know how drastically the amendment would change the power structure of their government. Unintentionally, the article gave full autonomy to the courts to pass administrative rules that have “the force and effect of law.” This change led to rules that have become law without representation and gave the court a lawmaking power that was originally reserved only to the people’s Legislature. As a consequence, the Judicial Branch, which is an unelected group of five very powerful people, has become the most powerful branch of government. The Legislature, which is directly accountable to the people because representatives and senators are elected every two years, has become subservient to the unelected Supreme Court’s decisions.

For example, by passing Judicial Branch Rule 1.2, the Supreme Court has allowed the courts within the Judicial Branch to waive all rules. This essentially makes all law within New Hampshire arbitrary and capricious, up to the whim of a tyrant judge. This rule has been used in the family courts to waive the rules of evidence and allow hearsay evidence to be used against parents, for instance.

In another example, Judicial Branch Rule 1.9 gives the court discretion to deny appeals to the Supreme Court, despite the fact that the N.H. Constitution protects that right specifically in Part 2, Articles 77 and 91. When the same government body that interprets the N.H. Constitution is allowed to waive the Constitution by passing a rule, it makes the body untouchable. That’s where we are today.

Question 2 would make the Judicial Branch accountable to the people again by allowing the Legislature to pass laws that overrule court rules that go too far. This would restore checks and balances and make sure the court system answers to the people of New Hampshire again, through their elected representatives.

If you still have doubts about Question 2, Rep. Kevin Avard has put together a video series that discuss all the reasons why this constitutional amendment is needed. You may watch those videos by following these links:

Question 2 requires a two-thirds vote of the people to amend the N.H. Constitution. The actual number of votes required to pass the amendment will not be known until the election concludes and the total number of voters can be tabulated. Cornerstone is advocating a “yes” vote on Question 2.

Question 3: Constitutional Convention

Question 3 simply asks, “Shall there be a convention to amend or revise the Constitution?” Part 2, Article 100 of the N.H. Constitution gives the Legislature the option to pose this question at any time to voters by a simple majority vote. However, if the Legislature does not pose the question within a 10-year period, the Secretary of State is required to put the question on the ballot. This year is the end of a 10-year period since the question was last posed to voters, so the Secretary of State is exercising his constitutional duty by putting Question 3 on the ballot.

Unlike Questions 1 & 2, which directly amend the Constitution upon a two-thirds vote of the people, Question 3 requires only a majority vote of the people to pass. If it passes, the Legislature will have the duty to set up an election for delegates to the Constitutional Convention within a two-year period, or the election will automatically take place at the same time as the next general election.

The election of delegates will occur in the same way as an election for representatives to the N.H. House of Representatives. So, if you live in a community that elects one representative to the General Court, you will elect one delegate to the Constitutional Convention. If you elect 10 representatives, you will elect 10 delegates. If you live in a community with multiple districts, your community will elect delegates for these multiple districts.

Once the delegates are elected, the Legislature will set up a time for the Constitutional Convention to meet. The delegates can pass any amendment or revision to the Constitution they choose with a three-fifths vote. Upon a successful vote, the adopted amendment would then go on the next general election ballot for a vote of the people. Just like constitutional amendments that are passed by a three-fifth vote of the Legislature, an amendment passed by a three-fifth vote of a Constitutional Convention will require a two-thirds vote of the general public to become part of the N.H. Constitution.

The advantage of the Constitutional Convention method of amending the N.H. Constitution is that delegates can devote all of their time and attention to the Constitution and whether our current form of government is working for the people. Amendments will have greater deliberation in a Constitutional Convention than they would in the Legislature, which must also attend to passing a budget and other laws as the public good may require.